Opinion
D059285
08-17-2011
In re L.C., JR., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. SYLVIA J. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. J517375)
APPEAL from a judgment of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Affirmed.
Sylvia J. and L.C., Sr., (L.C.) appeal the judgment terminating their parental rights to their two-year-old son, L.C., Jr. Sylvia contends the court erred by denying her request to continue the dispositional phase of the hearing on the second supplemental petition (Welf. & Inst. Code, § 387) filed by the San Diego County Health and Human Services Agency (the Agency), which sought L.C., Jr.,'s removal from his placement with a paternal aunt (Aunt). Sylvia also contends the juvenile court erred by finding that the Agency did not abuse its discretion by declining to approve the home of L.C., Jr.,'s maternal grandmother (Grandmother) for placement. L.C. contends there is no substantial evidence to support the court's findings at the adjudicatory phase of the section 387 hearing. L.C. also contends the court abused its discretion by summarily denying his third modification petition (§ 388),which sought reinstatement of reunification services or L.C., Jr.,'s return to L.C.'s custody with family maintenance services. Finally, L.C. contends the court erred by declining to apply the beneficial relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). We affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
There were two section 387 petitions in this case. Further references are to the proceedings on the second section 387 petition, unless otherwise indicated.
L.C. filed three section 388 petitions. Further references are to the proceedings on the third section 388 petition, unless otherwise indicated.
I
BACKGROUND
In January 2009 the Agency filed a dependency petition for newborn L.C., Jr., because he and Sylvia tested positive for cocaine and marijuana. L.C., Jr., was detained in the hospital, then in a foster home. In March L.C., Jr., was placed with L.C. In June the Agency filed its first section 387 petition because L.C. had a positive drug test and submitted a diluted sample. L.C., Jr., was detained in Polinsky Children's Center, then with Aunt. In July the court made a true finding on the first section 387 petition and ordered L.C., Jr., placed with Aunt. At the March 2010 six-month review hearing, the court terminated reunification services and set a section 366.26 hearing. In June L.C. filed his first section 388 petition, which the court summarily denied in August.
On August 10, 2010, the Agency filed the section 387 petition at issue in this appeal. The petition alleged L.C., Jr., was burned while in Aunt's care, and she did not report this or cooperate with the Agency's investigation. L.C., Jr., was detained in a foster home where he remained for the remainder of the case. On August 30, L.C. filed his second section 388 petition, asking the court to vacate the order setting the section 366.26 hearing and reinstate reunification services, or return L.C., Jr., to L.C.'s custody. On September 1, the court summarily denied the second section 388 petition and set a hearing on the section 387 petition.
In January 2011 L.C. filed the section 388 petition at issue in this appeal and the court summarily denied it. In February the court entered true findings on the section 387 petition, ordered L.C., Jr., placed in foster care, and terminated parental rights.
II
THE SECTION 387 HEARING
Before parental rights are terminated, the Agency cannot move a child from a court-ordered relative placement to a foster placement without filing a section 387 petition and obtaining a dispositional order on the petition. (§ 387, subd. (a); In re H.G. (2006) 146 Cal.App.4th 1, 10-11; In re A.O. (2004) 120 Cal.App.4th 1054, 1060.) During the adjudicatory phase of the section 387 hearing, the Agency has the burden of proof by a preponderance of the evidence. (In re H.G., supra, at p. 11; In re Jonique W. (1994) 26 Cal.App.4th 685, 691.) The court must decide whether the factual allegations of the petitions are true, and if so, whether "the [relative] placement is not appropriate in view of the criteria in Section 361.3." (§ 387, subd. (b); Cal. Rules of Court, rule 5.565(e); In re H.G., supra, at p. 11.)
L.C. relies on In re Joel H. (1993) 19 Cal.App.4th 1185. That case was decided before the 1997 amendment to section 387, which added the reference to section 361.3. (In re Miguel E. (2004) 120 Cal.App.4th 521, 547, fn. 23.) When In re Joel H. was decided, section 387 required a showing "the previous disposition has not been effective in the rehabilitation or protection of the minor." (§ 387, former subd. (a), as amended by Stats. 1997, ch. 793, § 28 p. 5374.) The court in In re Joel H. concluded there was not substantial evidence of "actual harm or danger of harm to Joel's physical and emotional well-being to support the court's finding that the previous disposition order had not been effective in protecting the youngster." (In re Joel H, at p. 1203.)
All rule references are to the California Rules of Court.
"In determining whether placement with a relative is appropriate, the . . . court shall consider, but shall not be limited to," the factors enumerated in section 361.3, subdivision (a). (§ 361.3, subd. (a).) "The linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor." (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863.) The factors in section 361.3 include: "(1) The best interest of the child . . . . [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] . . . [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home . . . has been responsible for acts of child abuse or neglect. [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶] . . . [¶] (H) Provide legal permanence for the child if reunification fails. [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) The safety of the relative's home. For a relative to be considered appropriate to receive placement of a child under this section, the relative's home shall first be approved pursuant to the process and standards described in subdivision (d) of Section 309."(§ 361.3, subd. (a).)
"[S]ection 309, subdivision (d) . . . requires the Agency to conduct an in-home inspection regarding safety and the relative's ability to care for the child . . . . (Ibid.)The approval of the relative's home is based on the standards set forth in regulations for family foster care licensing, which include standards of safety and sanitation for the home and standards for basic personal care, supervision, and services provided by the caregiver. [Citations.]" (In re H.G., supra, 146 Cal.App.4th at p. 12, fn. 6.)
We review the juvenile court's findings for substantial evidence. (In re H.G., supra, 146 Cal.App.4th at pp. 12-14; In re A.O., supra, 120 Cal.App.4th at pp. 1061, 1064.) "We review the evidence in the light most favorable to the trial court's determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial court's findings. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The burden is on the party or parties challenging the findings and orders of the trial court to show there is no evidence of a substantial nature to support the finding or order. [Citation.]" (In re H.G., supra, at pp. 12- 13.) Here, there is substantial evidence to support the findings at the adjudicatory phase of the section 387 hearing.
On August 5, 2010, Grandmother told the Agency that when she picked up L.C., Jr., for a visit on August 3, he had a severe burn on the back of his right hand. When Grandmother asked Aunt what had happened, Aunt said that L.C., Jr., had accidentally " 'grabbed' the curling irons."
The social worker telephoned Aunt, who did not mention the burn until the social worker asked about it. Aunt said L.C., Jr., had "grabbed" and "pulled the curling irons down" and this caused a "small bubble." The social worker asked if L.C., Jr., had received any medical treatment. Aunt said "it was not that bad;" she ran cold water over the burn and put Neosporin on it. The social worker asked Aunt why she had not reported the burn to the Agency. Aunt said, "I did try to call you a lot of times but you weren't there." The social worker tried to explain the importance of reporting injuries and seeking medical attention, but Aunt became argumentative and defensive. The Agency's packet, given to relative caregivers, states: "The caregiver agrees to report any accidents, injuries or incidents that threaten to harm the physical or emotional health or safety of the child."
Aunt testified she had taken L.C., Jr., to the hospital on earlier occasions without telling the Agency.
On August 5, 2010, the social worker and an emergency response worker went to Aunt's home. They found L.C., Jr., outside with one or two young girls as his only supervisors. This was the second time the Agency had found L.C., Jr., with an unapproved caretaker. This, along with Aunt's varying accounts of when, where and how L.C., Jr., was burned, led the social worker to question whether Aunt was supervising L.C., Jr., when he was burned.
Aunt testified L.C., Jr., was in the kitchen with her husband when the social workers arrived.
The social worker and the emergency response worker entered Aunt's apartment and found it was extremely messy, with cleaning supplies and pesticides within L.C., Jr.,'s reach. Next to the cleaning supplies was a baby bottle containing old milk. L.C., Jr., grabbed the bottle and the social worker had to tell Aunt to clean it. Aunt claimed the cleaning supplies and pesticides were accessible to L.C., Jr., because work was being done in the kitchen, but refused the emergency response worker's attempt to verify this claim. Aunt repeatedly denied the emergency response worker access to the remainder of the home, including L.C., Jr.,'s bedroom, although the social worker explained the need to document the home's condition.Aunt became hostile and refused to discuss the need for a safety plan.
On previous visits social workers had told Aunt her apartment was hazardous because it was cluttered with items L.C., Jr., could trip on or ingest.
Agency protocol required the social workers to inspect the home for safety. Aunt testified the social workers asked to take photographs, but did not ask to look at the remainder of the home.
The court found the social worker did not have a confrontational personality, and it was doubtful "she would have triggered some sort of a hostile reaction in a normal person."
The social worker examined L.C., Jr.,'s hand and found a burn about two inches long, with some areas beginning to form a scab; approximately one inch of the burned area had a deeper layer of skin exposed. L.C., Jr., did not appear to be bothered by the wound, although Aunt admitted he had "cried for a long time" when he was burned. The emergency response worker took L.C., Jr., and Aunt to the hospital, where a physician asked Aunt how L.C., Jr., had been burned. Aunt said L.C., Jr., had come up behind her when she was curling her hair, and as she turned, the curling iron touched the back of his hand. The physician believed Aunt's explanation was consistent with the injury, Aunt had treated the burn appropriately and it was healing well. At the conclusion of the August 5, 2010, home visit, the Agency detained L.C., Jr. in a foster home.
The court found the principal reasons the Agency had decided to remove L.C., Jr., was that he had been burned and Aunt had refused to develop a safety plan. Thus, the court found the factual allegations of the section 387 petition were true. The court then found the Agency was justified in removing L.C., Jr., from Aunt's home. In making this finding, the court noted there was an indication Aunt would not cooperate with the Agency, so the Agency could not safely leave L.C., Jr., in her care, and removal was in his best interests. This constitutes a finding that placement with Aunt was not appropriate because it did not serve L.C., Jr.,'s best interests (§ 361.3, subd. (a)(1)) and Aunt was unable to provide a safe environment and exercise proper and effective care and control (§ 361.3, subd. (a)(7)(A), (B)). Thus, the court made the findings required at the adjudicatory phase of the hearing. Substantial evidence supports the conclusion that the factual allegations of the petition were true and placement with Aunt was "not appropriate in view of the criteria in Section 361.3." (§ 387, subd. (b).)
Strictly speaking, the Agency did not remove L.C., Jr.; it detained him.
The determination whether there is a need to remove a child from a relative caretaker's home is an issue for the dispositional phase of the section 387 hearing. (In re H.G., supra, 146 Cal.App.4th at pp. 12, 17-18.) In ruling on this issue, the court "follows the procedures for dispositional hearings to determine whether removal is appropriate." (In re Miguel E., supra, 120 Cal.App.4th at p. 542; rule 5.565(e)(2).) The removal determination is based on the risk of harm to the child if he or she remained in the relative placement. (In re H.G., supra, at p. 18.) The Agency has the burden of proof on that issue by a preponderance of the evidence. (In re A.O., supra, 120 Cal.App.4th at p. 1061.) At the dispositional phase, the court must also decide whether to order the child placed with another relative, or whether a higher level of care is necessary. Here, immediately after finding the Agency was justified in removing L.C., Jr., from Aunt's home, the court found that Grandmother was the only other relative seeking placement, and the Agency had sufficient support for its conclusion that her home was not adequate. The court thus found there was no appropriate relative placement.
The court did not hold a separate dispositional hearing, as required (In re H.G., supra, 146 Cal.App.4th at pp. 12, 17-18; In re A.O. (2010) 185 Cal.App.4th 103, 110; rule 5.565(e)), but the error was not prejudicial (In re Miguel E., supra, 120 Cal.App.4th at p. 542, criticizing In re Fred J. (1979) 89 Cal.App.3d 168). The court fully considered the evidence regarding the need to remove L.C., Jr., from Aunt's home, and specifically stated it was ordering removal. (See In re H.G., supra, at p. 17.)
L.C. points to the court's statement "there's a lot of room for debate here as to whether that burn was the sort of thing that should have generated the response it did from the Agency." L.C. argues this constitutes "an acknowledgment the evidence was inadequate to support a finding that the failure to report the burn resulted in ineffective protection of the child." L.C. also points to another statement by the court: "Was it a refusal to allow [the social workers] to inspect the home or a refusal for them to take pictures? Was it really that bad? I note from [Aunt]'s testimony that she said she did clean it up . . . [but] never told [the social workers] that she'd done it." L.C. argues this contradicts the "finding that the single refusal on August 5, 2010, to allow inspection created ineffective protection of the child."
The court made the statements in the course of weighing the evidence, and ultimately determined it was "pretty clear" the petition should be sustained. These statements, and others, presumably resulted from the trial court's recent assignment to juvenile dependency court. L.C. complains the court "[o]verlooked" the bond between L.C., Jr., and Aunt. It is clear L.C., Jr., and Aunt had a loving relationship (§ 361.3, subd. (a)(6)); the absence of an express statement regarding the bond does not mean the court failed to consider it.
Additionally, there was evidence that Aunt allowed L.C. to stay in her home overnight without the Agency's permission, thus failing to protect L.C., Jr., from L.C. (§ 361.3, subd. (a)(7)(D).)
III
THE CONTINUANCE REQUEST
On February 3, 2011, the Agency denied placement approval for Grandmother's home based on her criminal history, her social history and her poor judgment. On February 4, after the court found the factual allegations of the section 387 petition were true and L.C., Jr., was properly removed from Aunt's home, Sylvia's attorney requested a continuance of the dispositional phase of the hearing to allow an evaluation of Grandmother's home and to allow her to appeal the denial. The court declined to continue the hearing, reasoning that L.C., Jr., needed permanency; any argument regarding placement with Grandmother would be unavailing; there was no evidence the Agency had abused its discretion by refusing to approve Grandmother's home; and the court would reach the same conclusion if it exercised its independent judgment on the issue.
"Continuances are discouraged in dependency cases. [Citation.] '[N]o continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary . . . .' (§ 352, subd. (a).)" "We review the denial of a continuance for abuse of discretion." (In re Giovanni F. (2010) 184 Cal.App.4th 594, 605.)
Here, there was no abuse of discretion. L.C., Jr., had been in the dependency system for more than two years—his whole life. Sylvia now argues that a brief continuance would have sufficed, but in the trial court she did not specify the length of the continuance sought or show what period of time would be necessary. (§ 352, subd. (a).) There is no indication how long it would have taken to complete any administrative grievance procedure that Grandmother might initiate (In re N.V. (2010) 189 Cal.App.4th 25, 29), or that a new evaluation of her home would lead to a different outcome.
IV
PLACEMENT WITH GRANDMOTHER
At the February 2009 jurisdictional and dispositional hearing, the court ordered the Agency to evaluate Grandmother's home for placement. Grandmother was fingerprinted in February or April. In June, when L.C., Jr., was moved from L.C.'s home to Aunt's home, the placement assessment of Grandmother's home was still in process, and the Agency had doubts about her intellectual functioning and her emotional, physical and financial ability to care for L.C., Jr., for the long term. Additionally, Grandmother was pleased that L.C., Jr., was placed with Aunt. By late June, the Agency had discovered that Grandmother had a child welfare history in California (in 1992) and Texas (in 1994 and 1995). Grandmother claimed she was not aware of the history, and the Agency advised her to file a section 827 petition to obtain the child welfare reports. The record does not disclose whether Grandmother followed through. In July the Agency reported that Grandmother had been cleared through the Federal Bureau of Investigation, but the California Department of Justice documents showed she had been convicted of welfare fraud in 1995 and sentenced to five years' probation and one day in jail.
Grandmother had difficulty comprehending the documents provided by the social worker who assessed her home, and in one telephone conversation, Grandmother's slow speech and use of profanity led the social worker to believe Grandmother was under the influence of something.
The disposition of one of the 1992 reports was unknown, and the disposition of the other 1992 report, physical abuse by Sylvia's stepfather, was "substantiated." The dispositions of the 1994 and 1995 reports, for physical abuse and neglect by Grandmother and the stepfather, were "inconclusive.Substantiated report' means a report that is determined by the investigator . . . to constitute child abuse or neglect . . . based upon evidence that makes it more likely than not that child abuse or neglect . . . occurred." (Pen. Code, § 11165.12, subd. (b).) " 'Inconclusive report' means a report that is determined by the investigator . . . not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse or neglect . . . has occurred." (Id., subd. (c).)
In August 2010, when the placement with Aunt ended, Grandmother requested that her home be evaluated. That month, a social worker inspected her home. The Agency's concerns remained, and the agency had also learned that Grandmother had been convicted of buying alcohol for a minor. Grandmother again told the Agency she was unaware she had a child welfare history. By August 30, the Agency had told Grandmother that it would not place L.C., Jr., in her home.
A later report stated the offense of buying alcohol for a minor occurred in 2005 and Grandmother received three years' summary probation. That report also stated that in 2006 or 2007, she was charged with or convicted of allowing an unlicensed driver to drive her car. After the Agency learned Grandmother had a criminal record, it asked the court for discretion to require that her visits be supervised and to decrease the amount of her visitation. The court gave the Agency discretion to decrease visits, but ordered that visits would be unsupervised.
Sylvia asserts the Agency learned of Grandmother's history in February 2009, when Grandmother was fingerprinted. The record does not support that assertion.
In November 2010 Sylvia gave birth to a baby boy and Grandmother's home was assessed for his placement. The Agency decided not to place the baby with Grandmother based on her criminal background and poor judgment. In January 2011 Grandmother testified that five or six months previously, she had mailed the Agency three letters of reference it had requested. The Agency received one letter in August. None of the letters are in the appellate record.
On an unspecified date, the social worker sought a waiver of Grandmother's criminal history from an Agency section chief. A waiver was necessary for the approval of Grandmother's home for L.C., Jr.,'s placement. The section chief refused to sign a waiver.On February 3, 2011, the Agency denied placement approval for Grandmother's home based on her criminal history, her social history and her poor judgment. The next day, at the section 387 hearing, the court found there was adequate support for the Agency's conclusion that Grandmother's home was not an appropriate placement for L.C., Jr.
Sylvia claims this occurred in the baby's dependency case, not in the instant case. Our reading of the record does not support this claim.
Section 361.3 gives "preferential consideration" to placement requests by certain relatives upon the child's removal from the parent's physical custody at the dispositional hearing. (§ 361.3, subds. (a), (c)); In re Lauren R. (2007) 148 Cal.App.4th 841, 854.) " 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, (c)(1).) "Preferential consideration 'does not create an evidentiary presumption in favor of a relative, but merely places the relative at the head of the line when the court is determining which placement is in the child's best interests.' [Citation.]" (In re Antonio G. (2007) 159 Cal.App.4th 369, 376.) After the original dispositional hearing, the relative placement preference does not arise again until "a new placement of the child must be made." (§ 361.3, subd. (d), quoted in In re Lauren R., supra, at p. 854.). Here, after the court ordered L.C., Jr., removed from Aunt's home, a new placement was necessary. The foster home in which L.C., Jr., had been residing since August 5, 2010, was a detention, not a placement.
Before a child is placed with a relative, the relative must undergo "a state-level criminal records check," followed by "a fingerprint clearance check . . . through the [California] Department of Justice" and a review of the results. (§ 361.4, subd. (b).) "The Department of Justice shall forward fingerprint requests for federal-level criminal history information to the Federal Bureau of Investigation . . . ." (Ibid.)If the relative has been convicted of a crime that would preclude foster home licensing, the child may not be placed in the relative's home unless the Agency grants an exemption. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1056; In re Hanna S. (2004) 118 Cal.App.4th 1087, 1090-1091.) "To grant an exemption, the agency must have 'substantial and convincing evidence to support a reasonable belief that the person with the criminal conviction is of such good character as to justify the placement and not present a risk of harm to the child . . . .' [Citations.]" (In re Esperanza C., supra, at p. 1056.) The Agency "must consider factors including, but not limited to, the following as evidence of good character and rehabilitation: the nature of the crime and whether it involved violence or a threat of violence to others; the period of time since the crime was committed and the number of offenses; circumstances surrounding the commission of the crime that would demonstrate the unlikelihood of repetition; activities since conviction, including employment, therapy or education; a full and unconditional pardon or certificate of rehabilitation; character references; and honesty and truthfulness in the exemption application process. [Citation.] The agency must also consider the facility and type of association, and the individual's age at the time the crime was committed. [Citation.]" (Ibid.) The juvenile court does not have the statutory authority to grant an exemption, but reviews for abuse of discretion the Agency's denial of an exemption. (Ibid.)
Our discussion does not apply to nonexemptible offenses, which are not relevant to this case.
The Agency must also complete a Child Abuse Central Index check of the relative, and if the Agency deems the relative's home unsuitable due to a child welfare history, the juvenile court exercises its independent judgment in reviewing that decision. (In re N.V., supra, 189 Cal.App.4th at p. 30.)
Here, the juvenile court properly found the Agency's determination that Grandmother's home was not appropriate was "adequately supported." The court also properly found there was no evidence the Agency had abused its discretion by declining to approve the home for placement. Grandmother's apparent failure to disclose her full criminal history when she requested placement, and her claimed ignorance of her child welfare history, suggest dishonesty, a suggestion reinforced by her welfare fraud conviction. Her child welfare history evidences a failure to protect and care for children properly. The 2005 offense of buying alcohol for a minor demonstrates continuing criminality, poor judgment and that L.C., Jr., would be at risk in Grandmother's home. Her lack of judgment was again evident in February 2010 when Grandmother said she had told L.C. he should not be drinking, but admitted driving him to a liquor store where he bought alcohol.
The court stated: "But the fact of the matter is, that those convictions are there. And while, you know, she's probably a perfectly good mother and could do a good job of raising [L.C., Jr.], the regulations are there for a reason. And I think that [the Agency has] complied with them." Sylvia argues this statement demonstrates the court incorrectly assumed that Grandmother's criminal record, by itself, barred placement. We disagree. The statement was simply a recognition that while Grandmother had some good qualities, she also had criminal convictions, and the Agency had complied with the regulations, which were intended to protect dependent children.
V
L.C.'S SECTION 388 PETITION
Section 388 allows the juvenile court to modify an order if a party establishes, by a preponderance of the evidence, that changed circumstances or new evidence exist and the proposed change would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) To obtain a hearing on a section 388 petition, the parent must make a prima facie showing as to both of these elements. (In re Zachary G., supra, at p. 806; In re Justice P. (2004) 123 Cal.App.4th 181, 188.) The petition should be liberally construed in favor of granting a hearing, but "[t]he prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G., supra, at p. 806.) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re Justice P., supra, at p. 189.) We review the summary denial of a section 388 petition for an abuse of discretion. (In re Zachary G., supra, at p. 808; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433.)
As circumstances that had changed since the March 2010 setting order, L.C.'s section 388 petition alleged that in May he had completed a substance abuse program; in August he had regained his driver's license; in September he had participated in a bonding study that demonstrated L.C., Jr.,'s attachment to him; in January 2011, he had completed an eight-hour anger management program; he had appropriate housing, employment and day care arrangements; he was participating in Narcotics Anonymous and working with a sponsor; he had maintained consistent and positive visitation; and L.C., Jr., was no longer in Aunt's prospective adoptive home. The section 388 petition alleged the requested modification was in L.C., Jr.,'s best interests because he was attached to L.C. and his extended family; perceived L.C. as his parent and became distressed when they separated; would be traumatized by termination of their relationship; had endured multiple placements; needed permanency; and was previously placed with L.C. Additionally, the section 388 petition alleged L.C. had visited daily since L.C., Jr.,'s removal; L.C. loved L.C., Jr.; and L.C. was motivated to be a good parent.
The Agency's section 366.26 report, filed in June 2010, identified Aunt as a prospective adoptive parent. After L.C., Jr.,'s removal from Aunt's care, the Agency continued to recommend a permanent plan of adoption.
On January 14, 2011, the court summarily denied the section 388 petition. The court found that L.C. had not made a prima facie showing of changed circumstances and/or best interests. The court stated the Agency's reports showed L.C. did not take responsibility for his actions; he minimized his participation in domestic violence; an eight-hour anger management session was inadequate; and L.C.'s statement that he was addicted to drugs, but was not an alcoholic, cast doubt on his ability to stay sober. The court noted the bonding study did not pass muster under Kelly-Frye (People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013); described a relationship with L.C. such as the relationship L.C., Jr., might have with a babysitter; and stopped short of predicting that L.C., Jr., might suffer emotional problems if separated from L.C. The court did not abuse its discretion by summarily denying the section 388 petition.
L.C. contends "the parties agreed the social worker's reports dated January 14, 2011, could not be considered." L.C. does not provide a citation to the record to support this contention, and our review of the record reveals no such agreement. The court considered the reports.
L.C. characterizes the January 14, 2011, reports as "vehemen[t]" and "an unusual and vigorous attack by the social worker on a parent's progress . . . ." In addition to pointing out the ways in which L.C. had not changed, the reports mentioned many points in his favor. The reports commended him for making his home appropriate for a child, obtaining steady employment, finding a day care provider, regaining his driver's license and continuing to attend meetings. The reports cited L.C.'s regular contact and positive relationship with L.C., Jr., and noted that L.C. was affectionate during visits, often played a parental role and was usually aware of L.C., Jr.,'s safety.
During the hearing, L.C. said he was on step five of his 12-step program, but could not remember what step five or step four entailed.
L.C. had a history of substance abuse dating back more than 20 years. He admitted he had a drug problem, but denied he was an alcoholic despite 2008 and 2009 convictions of driving under the influence of alcohol. L.C.'s substance abuse counselor said L.C. had a problem with alcohol, and L.C.'s denial of this problem was of concern. The counselor noted L.C. was "ensconced in his old behaviors" and could be stubborn. In January 2011 L.C. told the social worker the convictions of driving under the influence were based on "misunderstandings;" the first time, his blood alcohol level was below the legal limit; the second time, he drank because someone close to him had died.
L.C. was involved in a violent confrontation with Sylvia in January 2010 but denied responsibility for the incident. In November L.C. was so verbally aggressive with staff members of the Family Visitation Center that visits were moved to the Agency's office. In December L.C. told the social worker he did not understand why his visits had been moved and denied he had been upset. In January 2011, one week after L.C. completed the anger management class, the social worker asked him to explain what he had learned. L.C. became defensive and confrontational with the social worker and raised his voice. L.C.'s anger management instructor acknowledged L.C. could be "explosive or expressive at times when he feels that he has been wronged."
The court had ordered one two-hour visit per week. L.C. became upset because the Family Visitation Center did not have a two-hour time slot available; he refused the offered one-hour slot.
L.C. argues the court abused its discretion by refusing to consider the bonding study. Although the court stated the bonding study was not admissible, it considered the study, and, in any event, any error was harmless. (See In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122.) The study stated L.C. "demonstrated the ability to effectively manage [L.C., Jr.,'s] emotional displays, encourage exploration, and ensure [his] safety" and L.C. was, "at least partially, [L.C., Jr.,'s] 'safe haven.' " The study determined there was a father-son attachment and, due to L.C., Jr.,'s youth and multiple placements, "the risk of emotional and/or behavioral problems is intensified, if the relationship with [L.C.] is terminated." The study concluded: "Developmental psychology indicates that curtailing contacts with [L.C.] will be experienced by [L.C., Jr.,] as a 'loss,' at a time when he does not have the internal psychological capacity to deal with that loss . . . . Consequently, the risk for [L.C., Jr.,] not overcoming the trauma of that separation is considered to be very high."
The bonding study consisted solely of an observation of L.C., Jr., with L.C. Psychologist Beatriz Heller, Ph.D., who conducted the study, did not observe L.C., Jr. with the prospective adoptive parent. During the observation session, L.C. complained that he was only allowed one visit per week and made a resentful "presentation" about L.C., Jr.,'s placement. While L.C.'s back was turned, L.C., Jr., placed a toy in his mouth. As the court noted, the study depicted an interaction such as L.C., Jr., might have with a babysitter. L.C., Jr., smiled when L.C. entered the room, but continued playing. When L.C. stood to leave, L.C., Jr., cried "in a manner that suggested intense anguish," but relaxed when L.C. held him. L.C., Jr., behaved in a similar manner when he was returned to the social worker at the end of the session.
This case was long past the reunification phase. As the court aptly noted, "Unfortunately, with [L.C., Jr.,], we are out of time. We are way past out of time." L.C., Jr., had been in the dependency system for two years and in the foster home for five months. He was strongly attached to the foster parent, who wished to adopt him. The focus was on his need for permanency and stability and there was a rebuttable presumption that continued foster care was in his best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 307-310.) As an "escape mechanism" available after the termination of reunification services and before termination of parental rights, section 388 protects the due process rights of a parent who can show a legitimate change of circumstances. (Id. at pp. 307-310.) The court did not abuse its discretion by concluding that L.C. had not shown a legitimate change in circumstances, and it would not be in L.C., Jr.,'s best interests to live with L.C or have his permanency delayed by reinstatement of reunification services.
VI
THE BENEFICIAL RELATIONSHIP EXCEPTION
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception exists if "[t]he parent[] [has] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A beneficial relationship is one that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) If terminating parental rights "would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome . . . ." (Ibid.) The existence of a beneficial relationship is determined by "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs. . . ." (Id. at p. 576.) Examining the evidence in the light most favorable to the judgment, we conclude there is substantial evidence to support the finding that L.C. did not meet his burden of proving the exception. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
Neither L.C. nor Sylvia contests the finding that L.C., Jr., was adoptable.
The court did not expressly state whether L.C. maintained regular visitation and contact. The record shows he did, although in the months before the hearing his calls to the foster home were less frequent.
L.C.'s visits were supervised. The visits were generally positive. L.C. and L.C., Jr., were affectionate with each other, and L.C., Jr., called L.C. "dada." L.C., Jr., was happy to see L.C., but did not appear excited at the beginning of visits, usually did not seem distressed at the end of visits, and did not ask for L.C. between visits. L.C. often fulfilled a parental role during visits, but sometimes failed to notice when L.C., Jr., engaged in dangerous behavior, such as putting a small object in his mouth and walking while holding a pencil. L.C. had to be prompted to change L.C, Jr.,'s diaper and sometimes did not support or comfort L.C., Jr., when he needed it. At times, L.C. demonstrated a lack of understanding of L.C., Jr.,'s stage of development. Even after being admonished by the social worker, L.C. allowed L.C., Jr., to listen to inappropriate songs. L.C. gave L.C., Jr., a Tupperware container of grapes without opening the container for him. At one visit, L.C. merely watched while L.C., Jr., interacted with relatives.
Dr. Heller observed L.C. and L.C., Jr., for an hour and a half for the bonding study. She could not say that L.C., Jr., was maladjusted, or that he would develop emotional or behavioral problems. She could not identify the most important person to L.C., Jr., because she had not observed him with the prospective adoptive parent. Dr. Heller could not say whether the bond between L.C. and L.C., Jr., was so strong that it was more likely than not that L.C., Jr., would suffer detriment if the bond were severed.
Over the two years of his life, L.C., Jr., had been in L.C.'s care for only three months near the beginning of this case. At the time of the contested disposition hearing, L.C., Jr., had lived in the prospective adoptive home for six months. He had formed a strong attachment to the prospective adoptive parent, whom he called "momma," and to her extended family. The prospective adoptive home offered the permanence, stability, safety and enriching environment that L.C., Jr., needed.
L.C. cites In re S.B. (2008) 164 Cal.App.4th 289, in which this court concluded the juvenile court erred in declining to apply the beneficial relationship exception. (Id. at p. 301.) In that case, the child continued to display a strong attachment to the appellant father after her removal; they "had an emotionally significant relationship;" and the father visited consistently. (Id. at pp. 293-294, 298-301.) Unlike L.C., the father in that case "complied with 'every aspect' of his case plan" (id. at p. 298), empathized with his child, recognized her needs (id. at p. 294) and placed her needs above his own (id. at p. 298). Thus, In re S.B. is distinguishable from the instant case.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR:
HALLER, J.
O'ROURKE, J.